Expert witnesses of all disciplines actually have more at risk during their depositions than the lawyers who retain them. While trial lawyers may have dozens or even hundreds of cases they are working on, the experts they retain whether they be medical experts, patent experts, psychologists etc. only have one reputation at risk each time they are deposed. Here are 5 things expert witnesses need to be aware of before they are deposed.
1. Expert witnesses should be careful not to take untenable positions that may come back to haunt them in future assignments. It is not unusual for expert witnesses to paint themselves into a corner compromising their future ability to testify successfully within their area of expertise.
2. Expert witnesses need to be aware of depositions where the opposing lawyer is asking questions and eliciting testimony to use at a future Daubert Challenge. These set-up depositions are dangerous to expert witnesses who, with or without their knowledge, may be subsequently disqualified from testifying.
3. Expert witnesses whether they be engineering experts, CPA’s, appraisers etc. need to be aware of retaining counsels attempts to influence/manipulate them and their opinions during depositions. These attempts may occur before their deposition (changing or withholding reports) or during their deposition preparation. Experts need to remember that retaining counsel is not their attorney and may have a different agenda i.e. winning the case as opposed to protecting the reputation of the expert.
4. Expert witnesses of all disciplines need to be fully aware of their legal rights when being deposed. These experts should know what questions they cannot be forced to answer, what to do when opposing counsel is abusing them, and what to do to protect themselves in situations they are in jeopardy.
5. One of the biggest risks for expert witnesses and their reputations is poor or inadequate preparation by retaining counsel for the deposition. Experts, whether they are experienced or inexperienced, are at a substantially increased risk when retaining counsel has not advised them of the issues, difficult questions they are likely to face, how to rebut the tactics of counsel. Every expert witness should have a complete and thorough practice deposition performed by counsel as part of the preparation process. Failure to do so puts the expert witness at a tremendous disadvantage during their challenging deposition. When retaining counsel is unable or unwilling to properly prepare the expert witness the expert should consider getting assistance elsewhere.